A State By Any Other Name

A century and a half ago, today, my home state actually became a state. So, happy birthday, West Virginia! But, did you know, West Virginia almost had a different name? And if it had, might things have worked out a little differently for those of us born without an aunt in Richmond (or, for Charlestonians, near the beach)? When the voters of the counties that would become West Virginia voted (mostly) not to leave the Union, the name originally given to the area was Kanawha, after the Kanawha River that flows through Charleston and into the Ohio. That did not go over very well when the Wheeling convention drafting the new state’s constitution got underway in December 1861. One delegate objected, arguing:

one reason I have for striking it out is that I am a Virginian. . . . It always makes me think of the Virgin Mary, the mother of our blessed Redeemer. It is a name that I almost revere; and I am utterly opposed to leaving it out and substituting the name ‘Kanawha’ in its stead.

Some other delegates harrumphed the importance of maintaining a link to Virginia. Another objected that naming the state Kanawha would lead to confusion with Kanawha County. He concluded:

Therefore I can see no peculiar claim that Kanawha has. There is a very pretty river there of this name - nice river - but there is no particular euphony in the name; or perhaps no claim from historical considerations. I do not know of any.

Anyone who’s heard someone from out of state try to pronounce “Kanawha” has to admit it does have some problems in the euphony department. Still another objecting delegate noted the beauty of the Kanawha river and valley and “suppose[d] they are very clever people,” which is a wonderfully backhanded compliment. Other names were proposed – Western Virginia, New Virginia, Columbia, Allegheny, Augusta and, of course, West Virginia.* It prevailed overwhelmingly in the final vote (getting three times more votes than poor Kanawha). While one of the reasons given for not naming the new state Kanawha was to avoid confusion with the already extant Kanawha County, there were similar concerns expressed about having “Virginia” in the name, too:

this thing may have some practical effect. You are so attached to Virginia that you are unwilling to lose the name. You look for immigration from other states. Will it be one of the means of inducing them to come here that you tell them that this is Virginia still - that you are to create the impression that Virginia policy is still to govern? Gentlemen, let that impression go abroad through the land, and the very name of Virginia, the very idea that Virginia may still prevail over this portion of the State, will prevent hundreds and thousands from coming within your borders.

Another delegate was more blunt:

Sir, there is more in this than perhaps I have said. If you make an agreement with eastern Virginia that after the division takes place, one is to be called East and the other West, or one is to be called Old Virginia and the other New, there might be less impropriety in it; for then it would indicate a division of territory, but, sir, under any circumstances they are to retain the name. They are to be Virginia and we are to be Little Virginia or New Virginia, or West Virginia, or some other soubriquet which is to degrade us in comparison with them. That is what gentlemen are driving at, sir.

Those concerns turned out to be valid. Sure, there are other states with geographically based names, but they’re complimentary to each other – North Dakota has its South Dakota, South Carolina has its North Carolina. But there is no East Virginia, just plain old Virginia. Making things more confusing, there is still an area referred to as western Virginia (a large hunk of which, to make things even more confusing, lies to the south of West Virginia!). It’s not hard to have sympathy for folks raised elsewhere who can’t really separate West Virginia from the old commonwealth (hence the “an aunt in Richmond” joke).

Would our founding fathers have been wise to listen to those concerns and choose a name that was completely unique? It probably wouldn’t have hurt. But I doubt it would had made a huge difference over the past 150 years. A name is not destiny and West Virginia’s current state has more to do with geography, shifting economic winds, and good ole’ fashioned political shenanigans than anything else.

Besides, regardless of what the state would have been called, it would still be Almost Heaven. Still full of beautiful vistas and babbling mountain streams, deep green mountains and rolling valleys. It would still be home to the same kind of slightly-out-of-step-with-modernity population it has today. Whatever it was called, West Virginia would still be West Virginia.

And, hey, if Futurama’s any guide (and when has it led you astray?), we’ll get our revenge on the mother commonwealth:

We’ll just have to wait another thousand years or so.

* NOTE: I’ve always seen “Vandalia” listed as one of the proposed names, but I don’t see it in this transcript, at least. Wikipedia includes it, however. Make of that what you will.

Are You a Copyright Scofflaw?

That sounds like an odd question to ask in the 21st Century, in the era of Bittorrent, when the breakthrough of Napster fades like a crumbling building in the rear view mirror, doesn’t it? But I’m not talking about anything electronic, anything dealing with the Internet, or even the complaints that the modern generation thinks everything should be free. I’m talking low tech. I’m talking old school. I’m talking something you do only around your closest family and most dear friends. I did it just this past Sunday. I’m talking . . . about singing “Happy Birthday.” Yes, that’s right, it appears that “Happy Birthday” is copyright protected:

If you want to sing the song on TV, or in a restaurant, or whatever, you have to pay a licensing fee to Warner/Chappell, the music company that owns the rights. The company makes about $2 million a year off the song, according to one estimate. 

* * *

The story of the song is long and weirdly complex. The short version is: A pair of sisters published a song called ‘Good Morning to You’ in 1893. Over the next few decades, the song morphed into ‘Happy Birthday to You.’ In the 1920s and '30s, a couple versions of the birthday song were published in copyrighted songbooks.

That’s why, for instance, when you see some poor schmuck being embarrassed by a phalanx of unenthused waitpersons on her birthday at some restaurant they’re never actually singing “Happy Birthday.” It’s cheaper to have someone write a song just for that chain (and, hey, you get the brand out there more!). But that may soon change, thanks to director Jennifer Nelson, who made a documentary on the song’s history and place in the culture. When it came time to put an actual performance of the song in the film, she found she had to pay Warner/Chappell $1500. She’s not alone:

Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the song in the acclaimed 1994 documentary ‘Hoop Dreams,’ in which it is sung at a man’s 18th birthday party. ‘It was an important scene,’ Mr. James said in a 2005 article in The New York Times, ‘there was some amazement that Arthur had made it to 18. Of course, we wanted that in.’

What Nelson has done is take the whole matter to court, seeking to have the song declared part of the public domain (the suit is based on work done in a law review article a few years ago). I don’t know enough about copyright law (or the tortured history of “Happy Birthday”) to offer an opinion on her chances of winning. I hope she does, though. Who needs the threat of Warner/Chappel’s enforcers breaking down your door just as the cake and ice cream gets handed out?

Friday Review: The Raven That Refused to Sing (and Other Stories)

I’ve had a strange relationship with Steven Wilson. Or with his music, anyway.

My first exposure to his stuff was Porcupine Tree’s The Sky Moves Sideways, which left me completely unimpressed. It wasn’t until I heard Porcupine Tree in their later, more streamlined Stupid Dream phase (via a webcast of their set at NEARFest) that something clicked. I’ve been a fan since, although I’ve not dug back into the older stuff (Sky . . . still doesn’t really do it for me).

Given that Porcupine Tree is essentially Wilson’s baby, it made sense to check out his other stuff. I really like most of what I’ve heard of No-Man (his collaboration with vocalist Tim Bowness) and would really like to get my hands on his droney ambient project Bass Communion (they’re maddeningly hard to come by). So when Wilson went “solo,” such as it was, I came along for the ride.

His first album, Insurgentes, mined a lot of his influences that were tangential to progressive rock, if they had any relation at all. As such, it’s not overtly “proggy,” but has a pan-genre inclusiveness to it that makes it really interesting. I like it more than most people, however. Grace for Drowning, his second effort, wore the influences of his work remixing the King Crimson catalog and went down a much more prog-through-the-lens-of-jazz path. In spite of an amazing list of collaborators, Grace . . . has never done much for me.

Which brings us to The Raven That Refused to Sing (and Other Stories). To tour Grace . . . Wilson put together a killer band that included Marco Minnemann, Theo Travis, and Nick Beggs. From that tour he took those guys right back into the studio for The Raven . . .., hoping to capture some of the energy of the live shows.

The result is pretty impressive, even though it doesn’t get me as excited as it does many prog fans. The Raven sounds even more like an homage to 70s symphonic prog, right down to the extensive use of the original King Crimson Mellotron (it pays to be friends with Bob Fripp). It’s used to particularly good effect near the end of “Luminol,” which in other places fires off riffs that remind me of “21st Century Schizoid Man” (or, more recently, another Wilson collaborator – Steve Hackett’s “Mechanical Bride”). The highlight for me is “Holy Drinker,” with some fantastic organ and synth bits. The title track is also a beautiful, mournful cap to the whole experience.

I’ve lived with Grace for Drowning since it came out, waiting for it to grow on me and rip my head off. It’s never happened. But in the few weeks I’ve had to digest The Raven . . ., I’ve found myself warming to it noticeably. Not an immediate “wow,” but definitely an impressive, layered grower. There’s nothing wrong with that.

Details
------------
The Raven That Refused to Sing (and Other Stories), by Steven Wilson
Released 2012

Tracks:
1. Luminol (12:10)
2. Drive Home (7:37)
3. The Holy Drinker (10:13)
4. The Pin Drop (5:03)
5. The Watchmaker (11:43)
6. The Raven That Refused To Sing (7:57)

Players:
Guthrie Govan (lead guitar)
Nick Beggs (bass, Stick, backing vocals)
Marco Minnemann (drums, percussion)
Adam Holzman (Rhodes, Hammond, piano, Minimoog)
Theo Travis (saxophone, flute, clarinet)
Steven Wilson (vocals, guitars, bass keyboards, Mellotron)

Another Take On Punishment and Rehabilitation

Two words I would not associate with the criminal justice system are “swift” and “certain.”

Take a conversation I had with a client a couple of weeks ago. I was explaining the prospects for his case on appeal, digging into the procedure of the Fourth Circuit and how the whole thing worked. At the end, I had to tell him that, even if we won on appeal (it’s a nice issue, but you never know, right?) that would be about a year after he was sentenced. Patience isn’t just a virtue for those in the criminal justice system, it’s an essential.

Thing is, the system works the same way regardless of how you’re swept into it. A murder case may be more factually complex than a probation revocation, but the broad strokes are the same – you get charged for doing something wrong, you go to court to argue about it, and some sentence is imposed if you’re guilty. It may take months, if not years, to reach the end point, but which time who can remember what the hell you did to make it here in the first place?

One judge in Hawaii came up with what might be a better way, at least when it comes to probation/parole/supervised release violators. Judge Alm (a former US Attorney) came onto the bench in 2001 and immediately found the current system for such folks problematic and not very effective. So he switched things around:

The program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, is based on simple precepts that the judge who created it likened to ‘Parenting 101.’ It immediately jails, for no more than three or four days, offenders who miss a probation appointment or fail a drug test. Operating under the theory that judicial punishment should be ‘swift, certain, and proportionate,’ it seeks to turn around behavior that the system ordinarily, though inadvertently, seems to perpetuate. A proffered meth pipe attains a new significance, the thinking goes, when it comes attached to the prospect of an immediate three-day tour behind bars. Moreover, such brief, predictably enforced jail stays are congenial to prisoners used to a more unpredictable and, to their minds, arbitrary system.

So simple, but it appears to be working:

Participants in HOPE were 55 percent less likely than members of a control group to be arrested for a new crime, 72 percent less likely to use drugs, and 53 percent less likely to have their probation revoked. As a result, they served 48 percent fewer days of incarceration.

As a result, HOPE-like programs have appeared in over a dozen states.

Of course, a program like that can really only happen in a supervisory context, where probationers are required to follow lots of rules that don’t apply to regular folks. It’s not clear to me how you could apply the swift/certain punishment idea in new criminal cases without running into serious due process issues.

One interesting observation of those in the HOPE program involves their perception of the process:

’Ordinarily, when you ask an inmate why he’s behind bars, it’s always someone else’s fault,’ Hawken said. ‘ ‘I’m in jail because the judge is an SOB’; ‘I’m in jail because my probation officer had a bad day.’ ‘ But in Honolulu she encountered men and women who, unbidden and unpressured, praised the system that put them away, and told her they were locked up because they had ‘messed up’—something so unusual, she said, that it made her skin tingle. ‘That language of personal responsibility is unimaginable if you’re a criminal justice researcher.’

Now, in my experience the old saw that everybody who is in prison thinks their innocent isn’t the case. People are a lot more honest about their transgressions than that. However, what I have noticed is that there is a certain percentage of defendants who lose sight of any culpability on their part in their plight and view the entire predicament as a kind of game to be won or lost without any regard to their behavior. That’s particularly true when the only real “defense” someone has is a motion to suppress evidence that, otherwise, shows them to be dead-bang guilty. My own personal theory is that it doesn’t help those clients down the road to get caught up in the “game” and lose sight of what they did and how things need to work when they get out of prison.

HOPE offers a different take on criminal justice. It appears to be one of the truly unusual examples of a true win/win situation. The probationers do better overall and spend less time going back to jail. The public benefits by a reduction in crime, reduced cost (due to shorter incarceration), and a more efficient criminal justice system. Let’s hope (so to speak) it continues to spread.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

Friday Review: Zero Dark Thirty

Let’s begin with the thought that no representation of a historical event can really accurately capture that event. Even first-hand news accounts based on interviews from people who just witnessed the event often get things wrong, either the minor details or broader strokes. Which is only to say that any movie, even a documentary, isn’t able to present “the truth,” but rather only one variant of it, a variant that’s molded for reasons of art and, sometimes, politics or propaganda.

When Zero Dark Thirty came out last year I wrote about the controversy swirling around of whether it justified torture as the means by which the United States learned the location of Osama bin Laden, ultimately leading to him being killed by Navy SEALs. On the one hand, it was an apologia for torture that shows an efficacy that isn’t borne out by the historical record. On the other, it’s a movie that, perhaps, is taking aim at broader themes. As I concluded:

Which is just to say, you really need to see the movie before you decide its morally horrific. Is there some reason to think that critics, who have actually seen it, just check their moral compasses at the door? Or is the film perhaps more nuanced and subtle than Bruni, et. al., are giving it credit for? Who knows? I suppose we common folk will need to wait until January to find out.

In the end, it’s best to judge for yourself.

So now that I’ve finally seen Zero Dark Thirty, I suppose it’s time to do some judging. Putting to one side Kathryn Biggelow’s ill-advised remark that the film is “journalistic,” I think most of the furor about the film was ill founded.

First and foremost, does the movie come out and say torture was effective in getting crucial info on bin Laden and thus allowing us to track him down? Sort of yes, sort of no. The real problem is that, for dramatic/streamlining purposes, the dozens of people questioned and, in some cases, tortured for information during the search are pretty much reduced to one guy, Ammar. We see him brutalized in multiple ways, during which he either provides no information or incorrect information (in one scene he feebly recites every day of the week as potential answers to try and avoid being crammed into a tight wooden box). Later, after an attack in Saudi Arabia, he’s treated to lunch and a little kindness (in addition to false information about the attack) and only then does he provide some relevant information.

Is Ammar’s story one of torture working in the end? After all, during their little lunch the chief interrogator tells Ammar that he can hurt him again, if he doesn’t cooperate. The threat of more brutality hangs over the conversation like a circling bird of prey. Or, alternately, is Ammar’s story one that shows how torture doesn’t work, since he only gives up important information after the torture stops? Honestly, it’s both.

If Ammar was a real person, a single identifiable individual, I’d say it shows that torture had been effective. The brutality he experienced is a bell that cannot be unrung. After all, the whole reason the bad cop/good cop dance works isn’t because the suspect wants to please the good cop, it’s because he wants to avoid further pissing off the bad cop. Once tortured, any further questioning while the threat (explicit or otherwise) remains is tainted, at least within the short time frame presented in the film.

But Ammar isn’t a real person. He’s a character in a fictionalized account of a real event, one that serves as a stand in for numerous detainees, if not damned near all of them. Dramatically, the distinction between what produces no information (torture) and what produces valuable information (kindness, or at least humane treatment) is stark and dramatically effective.

So, is it a movie that argues for the triumph of torture or not? Did Dick Cheney really love it? Ultimately, I think it works as a sort of Rorschach test for the viewer. There’s enough there for viewers looking for a pro-torture message in the film to find it, such as later repeated references to new limits on torture making the hunt for bin Laden more difficult. But there’s also enough there to read it as a statement on the ultimate futility of torture as a useful information gathering tool. There is never, to be fair, a full-throated moral objection to torture, however. It’s a purely utilitarian argument.

Personally, I see the film as a meta commentary on the United States reaction to 9/11 and our behavior during the War on Terror. In addition to being a stand-in for the person (or persons) who led the hunt for bin Laden, the main character Maya strikes me as a stand-in for the American people as well. She is spurred to action by 9/11, is uncomfortable with some of what that means, but ultimately she’s not willing to completely repudiate it. Her laser-like focus on bin Laden is contrasted with the world moving on around her, raising questions about the need to expend resources on the hunt. And, finally, when all is said and done, what has Maya really accomplished? She heads home, alone, in the back of an empty C-130 transport plane, to an uncertain future. The air of melancholy at the end of the film seems to me to be a giant question mark – like someone’s asking “was all of this worth it?”

Having said all that, is the movie any good? It’s not bad, but there isn’t much greatness in it. Most of the film is a slow, slogging procedural that’s only of interest because of the inciting crime and the target of the manhunt. There’s no real character development, things just move from point A to point B, efficiently and competently, but not very compellingly. The exception to the rule is the depiction of the raid on bin Laden’s compound. Rather than pump it up artificially to be the kind of loud, bright, fast action sequence we’re used to on the big screen, Bigelow lets it play out in real time. It’s a slow, methodical execution of a meticulously assembled plan. It’s all the more chilling for the cold efficiency of the SEALs in doing their thing.

Good art, at some level, is about confronting the audience with something they don’t want to see or think about. On that level, Zero Dark Thirty succeeds in spades. Whatever your ultimate takeaway from the film, it’ll make you think about what’s in it, think about it, and make you reconsider your own thoughts. That’s not a bad result, all things considered.

The Details
------------------------
Zero Dark Thirty
Released 2012
Written by Mark Boal
Directed by Kathryn Bigelow
Starring Jessica Chastain, Jason Clarke, Kyle Chandler, et. al.

Quick Hits, of a Mostly Familiar Nature

Here are a few brief stories that caught my attention while I was away getting’ matrimonyed. A couple of them tap into things I’ve written about before, so they’re a bit familiar. I’m working my way back into things, obviously.

Public Art for Fun & Profit

Back in April I wrote about the latest example of now-you-see-it, now-you-don’t public art that was creating a stir. In that case, it was a Banksy mural in the London neighborhood of Harringey that appeared, as much of his stuff does, overnight. Several months later it disappeared just as suddenly. At the time, there were issues over who removed the mural and what it’s fate might be.

Flash forward to last Sunday, when “Slave Labor (Bunting Boy)” fetched a cool $1.1 million at a private auction in London. That came after an initial auction in Miami was scuttled at the behest of the Harringey town counsel. Not surprisingly, the ones selling the mural were the owners of Wood Green Investments, who owned the building upon which it was installed. They were entirely within their rights to do so.

Art Is Not the Artist

I’ve argued before that it’s best to separate an artist from his art. I don’t really begrudge people who can’t or won’t do that, but I think it’s a bit short sighted. You cut yourself off from a lot of interesting art if it all has to pass through some kind of ethical litmus test. Besides, on a practical level, I’d rather you not read what I write because it sucks instead of the fact that I’m a Democrat/atheist/prog fan/DC United supporter.

Here’s a recent example of where getting up on your high horse might not be that good of an idea. A grad student at Northwestern, a member of the University Chorale, objected to being required to perform a particular piece, Howard Hansen’s Song of Democracy. Not because it was too difficult or aesthetically poor, but because the lyrics for that piece were taken from a Walt Whitman poem and Whitman, as were many of his contemporaries, was a big-time racist. The professor threatened to fail the student, but it’s unclear how the dispute was resolved.

It’s one thing to object to performing something that in and of itself is racists, sexists, whatever. But backing up further and requiring ethical purity from the original author is composer is really asking for trouble. As my friend who was recently-doctored in conducting pointed out, such a litmus test would eliminate most of the cannon of established Western music.

I’d go on to argue it would do the same with art, literature, and nearly any other endeavor. And while nobody can take away your right to take umbrage at such things, aren’t there more important things to worry about than whether the lyricist of a song you have to sing in class was a douchebag a century and a half ago?

Oh My, Sexy Werewolves! In Prison!

Finally, here’s a fun story that actually raises important issues of free speech and criminal justice. An inmate in California has won the right to possess (and read, presumably) a book called The Silver Crown. Why did he have to go to court in the first place?

The 262-page novel tells the story of Iris, a werewolf hunter who ends up falling in love with one of her prey. The book contains ‘a great number of graphic sexual encounters, one per chapter through most of the book, including detailed descriptions of intercourse, sodomy, oral-genital contact, oral-anal contact, voyeurism, exhibitionism and ménage à trois. Semen is mentioned,’ Richman wrote.

The judge also notes that the book doesn’t advocate or advance violence and the sex isn’t really all that weird and doesn’t include, for example, bestiality (unless, the judge explains, you include the werewolves!).

Prisons generally aren’t keen on letting inmates have possession of sexually-related materials. The wife used to tell me about dealing with those kinds of regulations during her days at Borders. So it’s a bit of a pleasant surprise to see a court not simply bow down to the prison’s regulations.

But what’s really amusing is that you can tell the judge wasn’t all that happy about having to deal with The Silver Crown in the first place:

’Personally, we would be hard-pressed to say The Silver Crown has ‘significant’ literary value and is a work ‘of great import,’ Richman wrote. But, he concluded, ‘we cannot simply dismiss the work as nonserious literature because it deals with werewolves and other paranormal creatures and activities. For better or worse, some segment of the population is fascinated by werewolves and other mythical beings. ... Werewolves, in fact, have played a role in popular fiction for centuries.’

I’m not sure anyone who writes about himself in the third person gets to knock anybody else’s literary choices.

Hunter Becomes Hunted (Redux)

Back in April I blogged about Ken Anderson, a former prosecutor and current judge in Texas who made headlines for actually being criminally charged for misconduct that resulted in an innocent man being sent to prison for almost 25 years. In that post I mentioned that, regardless of the eventual outcome of the criminal proceedings, Anderson would ultimately be judged by voters when he faces reelection.

I no longer think that will be quite enough.

Scott over at Simple Justice has a copy of the judge’s order issuing the arrest warrant for Anderson, in which he lays out the findings of fact supporting the warrant. Buried deep in the order is this gem:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

Read that again, slowly, and make sure you grasp what Anderson said, under oath, to a court examining his conduct – that if he thinks your guilty, the law is just an impediment to his ultimate triumph of putting you in a cage. It’s hard to think of a more appalling example of a prosecutor who has decided to completely ignore his legal, constitutional, and ethical obligations in order to do what’s “right,” of which he is the only judge (naturally).

Prosecutors have a constitutional duty to turn over evidence to defendants that tends to show they’re innocent of the crime with which they’re charged. This so-called Brady obligation is a fundamental protection of an adversary system where one side has the entire investigative apparatus of the state at its disposal. Yet the very nature of it – evidence is required to be turned over only when it might exonerate the defendant – provides prosecutors with enough wiggle room to get into trouble.

I’ve heard that prosecutors are told that if they have a piece of evidence they don’t want the defense to have, then it’s the kind of evidence they need to turn over. Sound advice, but not followed very often. The law should make the decision much easier – turn over everything. Don’t leave the decision about what to disclose to a party with a vested interest in the result. Human nature being what it is, the temptation to filter things through your own biases is going to lead to bad results.

As for Anderson himself, I’m not sure if the law is capable of sending him to prison for what he’s done, for reasons noted in the initial post. But the Texas bar and judicial disciplinary apparatus presumably has more room to deal with his malfeasance. He is a disgrace to the profession and shouldn’t ever have a place in courtroom, except as a party.